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Ernst: Hoping common sense takes root with law

Published: Friday, February 18, 2011 at 1:00 a.m.

Last Modified: Thursday, February 17, 2011 at 6:52 p.m.

Most people in Punta Gorda probably don't know whether the plants in their yards comprise any of the nine invasive trees and 27 other exotics that the city prohibits. But, anyone who does have them is breaking the law.

The city plant police just wait for complaints. Don't like your neighbor? Turn him in for invasive plant possession, and he could face fines of $250 a day. Or better yet, if he happens to have a large ficus shading his yard, he'll have to pay thousands of dollars to remove it and probably hundreds more to replace any shade-loving plants that have grown under it.

Needless to say, this is one of those public policies that's bound to cause problems. Sure enough, they're starting to pop up.

On Wednesday, resident Peggy Keen and her attorney, Beth Sullivan, appeared before City Council to argue against the interpretation of the prohibited plant list. They also offered a sensible solution.

Keen was cited after a neighbor complained about her java plum, probably 50 years old.

Sullivan pointed out that the plant list falls under the city codes that deal with land development regulations. That implies that the prohibition relates to new construction sites or extensive remodeling, not 50-year-old landscapes.

Other jurisdictions have similar lists of prohibited plants.

However, Sullivan said, she could not find a single city or county that enforces the prohibition retroactively. Not Sarasota County. Not Charlotte County. Not the city of Sanibel.

Most have language similar to Sarasota's: "Established prohibited trees are not required to be removed by this section."

Sullivan suggested that Punta Gorda follow the lead of its peers.

That apparently made a bit too much sense, so the council took a path that could lead to even more problems. Council members instructed staff to come up with a list of criteria that might exempt from prosecution property owners with existing prohibited plants. Code enforcement or some judicial body would consider each case individually.

And somewhere in there the property owner also would have to sign a hold-harmless agreement, releasing the city from any liability.

That's the idea, at least.

And we wonder how government gets so big and out of control.

Honestly, if the city's leaders, in their hearts, believe that invasive plants threaten the health, welfare and safety of the community, they should scour the town identifying miscreants, rather than relying on neighbors to raise complaints that probably generate from issues other than the invasive nature of the plants.

Sullivan says the city's actions amount to a taking of private property without compensation. If she's correct, that could put the city in a predicament.

And what about the real estate agent who sells a property without disclosing that the buyer might have to pay thousands of dollars to remove the 40-foot banyan in the back yard?

Oh, banyans are OK; they're historic, one council member said Wednesday. Say what? Banyans, known scientifically as ficus benghalensis because of their Indian ancestry, are on the city's invasive list, which prohibits all ficuses.

So either banyans are out, or there's going to be selective enforcement for the thousands of plants and hundreds of property owners who grow them.

During the debate, councilman Bill Albers alluded to Sullivan's research on how other governments handle invasives and said, somewhat wistfully, "Simple is good in my mind."

<p>Most people in Punta Gorda probably don't know whether the plants in their yards comprise any of the nine invasive trees and 27 other exotics that the city prohibits. But, anyone who does have them is breaking the law.</p><p>The city plant police just wait for complaints. Don't like your neighbor? Turn him in for invasive plant possession, and he could face fines of $250 a day. Or better yet, if he happens to have a large ficus shading his yard, he'll have to pay thousands of dollars to remove it and probably hundreds more to replace any shade-loving plants that have grown under it.</p><p>Needless to say, this is one of those public policies that's bound to cause problems. Sure enough, they're starting to pop up.</p><p>On Wednesday, resident Peggy Keen and her attorney, Beth Sullivan, appeared before City Council to argue against the interpretation of the prohibited plant list. They also offered a sensible solution.</p><p>Keen was cited after a neighbor complained about her java plum, probably 50 years old.</p><p>Sullivan pointed out that the plant list falls under the city codes that deal with land development regulations. That implies that the prohibition relates to new construction sites or extensive remodeling, not 50-year-old landscapes.</p><p>Other jurisdictions have similar lists of prohibited plants.</p><p>However, Sullivan said, she could not find a single city or county that enforces the prohibition retroactively. Not Sarasota County. Not Charlotte County. Not the city of Sanibel.</p><p>Most have language similar to Sarasota's: "Established prohibited trees are not required to be removed by this section."</p><p>Sullivan suggested that Punta Gorda follow the lead of its peers.</p><p>That apparently made a bit too much sense, so the council took a path that could lead to even more problems. Council members instructed staff to come up with a list of criteria that might exempt from prosecution property owners with existing prohibited plants. Code enforcement or some judicial body would consider each case individually.</p><p>And somewhere in there the property owner also would have to sign a hold-harmless agreement, releasing the city from any liability.</p><p>That's the idea, at least.</p><p>And we wonder how government gets so big and out of control.</p><p>Honestly, if the city's leaders, in their hearts, believe that invasive plants threaten the health, welfare and safety of the community, they should scour the town identifying miscreants, rather than relying on neighbors to raise complaints that probably generate from issues other than the invasive nature of the plants.</p><p>Sullivan says the city's actions amount to a taking of private property without compensation. If she's correct, that could put the city in a predicament.</p><p>And what about the real estate agent who sells a property without disclosing that the buyer might have to pay thousands of dollars to remove the 40-foot banyan in the back yard?</p><p>Oh, banyans are OK; they're historic, one council member said Wednesday. Say what? Banyans, known scientifically as ficus benghalensis because of their Indian ancestry, are on the city's invasive list, which prohibits all ficuses.</p><p>So either banyans are out, or there's going to be selective enforcement for the thousands of plants and hundreds of property owners who grow them.</p><p>During the debate, councilman Bill Albers alluded to Sullivan's research on how other governments handle invasives and said, somewhat wistfully, "Simple is good in my mind."</p><p>He had the right idea. He still does.</p>